Philosophical Multicore

Sometimes controversial, sometimes fallacious, sometimes thought-provoking, and always fun.

Bill S.978: “Ten Strikes Bill”

Posted by Michael Dickens on July 4, 2011

There has been some commotion about Bill S.978:

Makes unauthorized web streaming of copyrighted content a felony with a possible penalty of up to 5 years in prison. Illegal streaming of copyrighted content is defined in the bill as an offense that “consists of 10 or more public performances by electronic means, during any 180-day period, of 1 or more copyrighted works” and has a total economic value, either to the copyright holder or the infringer, of at least $2,500.

You can read the bill itself here; it aims to amend Title 18, Section 2319.

Many people are upset about this bill because it would make it a felony to upload a video of someone singing karaoke, or to show footage of a video game (e.g. for a video game review or walkthrough). This raises some questions about principles and application.

From what I understand about current copyright law, the government does not actively remove copyrighted content on the internet. Rather, the holder of the copyright files a DMCA takedown notice with the site that is streaming the content. I do not believe Bill S.978 changes this fact. There is little danger of a record company filing a DMCA claim against a video of a karaoke party. On the other hand, streaming websites like YouTube may be more prone to preemptively remove videos with copyrighted content in order to avoid lawsuits.

I think it is unlikely that YouTube will remove all of their copyrighted content. There are literally millions of videos containing such content, and YouTube simply does not have a large enough staff to sift through the ever-growing pile of copyright-violating videos.

What, exactly, is the difference between the old law and the new bill? It looks like the only difference is that the new bill makes references to “public performance.” The current law defines copyright infringement as “reproduction or distribution, including by electronic means, during any 180–day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000,” while Bill S.978 would ban the reproduction or distribution of “public performances by electronic means, during any 180-day period, of 1 or more copyrighted works.” Current law makes it illegal to upload copyrighted content and this bill would make it illegal to upload a performance of copyrighted content.

I don’t know much about law so I may be wrong, but it appears to me that this does not threaten gamers who want to upload gameplay videos. In fact, uploading videos from copyrighted games is already illegal, but no one seems to be doing anything to prevent it. The only change, then, is that it would become illegal to stream a public performance of copyrighted material.

In principle, Bill S.978 makes sense given current copyright law. However, I think that public performances should qualify as fair use, as they do not harm the copyright holders. Perhaps record companies and copyright holders have a compelling reason why electronically distributing public performances should be prevented, but I certainly don’t know what it is.

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